Adoption versus fostering

But why have adoption at all? What is wrong with fostering? Then mistakes can be put right later.

A child in foster care will be placed with parents’ consent under section 20 of the Children Act or because a care order was made. The parents will retain their parental responsibility. Foster carers are trained professionals who are not providing a ‘family’ for a child in the same way adoptive parents would. That is the key distinction between adoption and fostering.

In the case of Re V [2013] the Court of Appeal decided that a Judge was wrong to agree that long term fostering would best meet the child’s needs. The Court of Appeal set out the key differences between the adoption and long term fostering.

Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.

Once an adoption order is made, it is made for all time.

Contact arrangements are different between fostered and adopted children. LA has a duty to allow reasonable contact with a child in care.

An adopted child is not subject to any further LA intervention and can live ‘normal’ family life without any ‘stigma’ of being child in care.

It is clear that adoption is currently seen and has been seen for some time by our domestic courts as the ‘gold standard’ of outcomes for children. But this isn’t a view shared by all – we certainly seem to be out of step with the rest of Europe.

The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. (NB However, Mostyn J has got this wrong – every European country permits adoption without the parents’ consent – see this post from the Transparency Project).

Critics of the current system further ask why there needs to be adoption at all, why can’t children go into foster care so they can return to their parents if it is later found that they shouldn’t have been removed from home in the first place or if the parents can make changes to the way they parent?

The problem that we have is the near universal agreement from child psychologists and other experts about the crucial importance to a child of finding a permanent home and being able to become securely attached to his or her adult carers. You can read here about some of the problems children face if they can’t develop a secure attachment to their adult carers.

If a child has been away from his or her birth parents for many months or even years and particularly if that child has now formed a secure attachment to an adoptive family, there is serious concern about the emotional harm that would be done to the child if he or she was removed from the adoptive family to return to the birth family.

Suggestions have been made that the birth families and adoptive families could ‘parent together’ in such cases but that would require a degree of emotional maturity and an ability to put bitterness and recrimination to one side, which may be beyond most people’s abilities.

This explains why very sadly, the Websters weren’t able to get their children back, despite a court concluding that they ‘probably’ were the victims of a miscarriage of justice because their child’s injuries may have been due to scurvy, but this wasn’t recognised at the time.

However, the Council of Europe reported in 2015 about different European countries and their attitudes to adoption and commented unfavourably about the UK’s refusal to reverse adoption orders in such circumstances; para 74:

My attention has been drawn to a handful of cases which are extremely tragic and concern miscarriages of justice. In several of these cases, an underlying medical condition of the child such as brittle- bone-disease or rickets was overlooked, and the children were placed for adoption (without parental consent). The tragedy is that even when the parents finally win in court, and can prove their innocence, they cannot get their children back, because a flaw in the English/Welsh legal system means that adoption orders cannot be reversed in any circumstances – in a misunderstanding of the “best interest of the child” who actually has a right to return to his/her birth family.

What does seem to be very clear is that we need more and better consideration of issues such as contact with birth families after an adoption order is made; see Re W [2016] and the comments of McFarlane LJ in the Bridget Lindley Memorial lecture October 2016 (mentioned below).

The ‘push’ for adoption.

There are serious concerns that an ideological ‘push’ for adoption is masking proper consideration of statistical trends and that adoption is being over promoted as the best outcome for children. An example of how the best interests of the child got over looked in a quest to find her an adoptive placement, see this case involving the London Borough of Hillingdon. Family Law Week reported:

The LGO found that during her time in care the council has spent two years looking for a family to adopt the girl, who has autism and other developmental delays, but none was found. She has been living with her current foster family since May 2011. The council asked the current foster carers to become special guardians, which would mean a more permanent arrangement, but the family told social workers they would need the extra long-term support they would receive if she remained a looked after child, and declined to become special guardians.

Because of the family’s refusal social workers carried on looking for an alternative permanent family, despite all evidence that this was not in her best interest. This uncertainty about her future has caused the girl significant stress and anxiety, damaging her welfare, her emotional wellbeing and her ability to learn.

The girl’s advocate contacted the LGO complaining that the council was not listening to the wishes of the girl to stay with her foster family.

The Adoption Leadership Board was concerned by the significant reduction in the last 12 months of placement orders made and decisions by LAs to pursue plans for adoption. Lucy Reed discusses this in her Pink Tape blog:

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.